AP GOPO
Chapter 14
The Courts
Federalist #78
• The judicial branch is by far the weakest
branch
• SCOTUS only has the power to judge,
not to act
• Can NOT execute law w/o EXECUTIVE
Branch
• Can NOT fund law w/o Legislative
Branch
Fed 78
• Political Rights are LEAST threatened
by the Judicial Branch
• Judicial Review is not in the Constitution
but it is referenced in Fed 78
• If you allow the courts to declare acts
void/unconstitutional then too much
pwr?
Fed #78
• SCOTUS too much Pwr? NO Says
Hamilton
• The Constitution is superior to any law
• The judges will simply act as referees
– Is the law Constitutional or isn’t it?
Robert’s Court
The Common Law Tradition
– English law is based on common law.
• Common law is judge-made law based initially on
the prevailing custom and eventually on legal
precedent.
Stare decisis, which means to stand on decided
cases.
Plessy V Fergusson & Stare Decisis
Roe V Wade & Stare Decisis
Sources of American Law
– Constitution - SCOTUS is only Court
listed
•Federalist #78 (Hamiliton discussed a SC
that would be PASSIVE; Judicial Review
would allow the will of the people over the
will of the legislature)
– Statutes and Administrative
Regulations (Created by Congress)
– Case Law (Court Case)
The Federal Court System
– Basic Judicial Requirements
•Jurisdiction - This is the authority to hear
and decide cases. The Constitution says
that the federal courts have jurisdiction in
cases that meet one of the following
criteria:
– The case involves a federal question
– The case involves diversity of
citizenship
Standing to Sue
Who is entitled to bring a suit?
– Known as…Standing to Sue
– Can you sue the govt just because you do
not like how and where they spend
money?
• NO
The Federal Court System
Types of Federal Courts
– U.S. District Courts - Judges Approved by the
Senate – ADVICE & CONSENT
– Senatorial Courtesy – President will meet
with Senator of same party in that state
• U.S. District Court (MN)
– U.S. Courts of Appeals (13 Total; MN is in 8)
– The United States Supreme Court(5 now 9)
– Specialized Federal Courts and the War on
Terrorism
• The FISA Court (National Security/Wiretaps)
• Alien Removal Courts
Bork
Roberts
Sotomayor
Sandra Day O’Conner
Breyer
Supreme Court
• Appointed by the President
• Approved by a majority of the Senate
(51)
• Senate Judiciary Committee conducts
public hearings
Judiciary Committee Hearing
Thomas Controversy
U.S. Attorneys
• http://www.nytimes.com/2007/02/26/opi
nion/26mon4.html
The Supreme Court
• Original Jurisdiction
– Cases affecting foreign diplomats
– Cases in which the state is a party
Supreme Court
• Appellate Jurisdiction
– Writ of Certiorari -attorneys will petition
the SC to appeal the lower courts ruling
– 90% of the petitions are denied by the SC
– ONLY 10% of appeals are granted
Certiorari
– ACLU has been influential in appealing SC
SCOTUS
• Supreme Court Webpage
Supreme Court
• Rule of Four - 4 of 9 agree it moves to
entire SC - “granted certiorari”
• Friday Conference - conduct an informal
vote on case that they heard
• Clerks then prepare a draft opinion
Recent Cases
• SCOTUS
• Cornell Law School
• OYEZ
Geographic Boundaries of Federal District
Courts and Circuit Courts of Appeals
Parties and Procedures
– Plaintiff, the person or organization that initiates a lawsuit.
– Defendant, the person or organization against whom the
lawsuit is brought.
– Litigate, to engage in a legal proceeding or seek relief in a
court of law; to carry on a lawsuit.
– Amicus Curiae brief, Latin for “friend of the court
– a brief filed by a third partywho is not directly involved
in the litigation but who has an interest in the outcome of
the case.
– Procedural Rules
• Civil contempt is failing to comply with a court’s order for
the benefit of another party. Criminal contempt is
obstructing the administration of justice or bringing the
court into disrespect.
Which Cases Reach the Supreme
Court?
• When two lower courts are in disagreement.
• When a lower court’s ruling conflicts with an
existing Supreme Court ruling.
• When a case has broad significance (as in
desegregation or abortion decisions).
• When a state court has decided a substantial federal
question.
• When the highest state court holds a federal law
invalid, or upholds a state law that has been
challenged as violating a federal law.
• When a federal court holds an act of Congress
unconstitutional.
• When the solicitor general is pressuring the Court
to hear a case.
Solicitor General
• Solicitor General
Cases before the Court
– Writ of certiorari. To issue a writ, a minimum
of four justices must agree that the case should
be heard by the Supreme Court (the “rule of
four”).
– Deciding Cases
• Once the Court has decided to accept a case, both
parties in the case will submit legal briefs and
(usually) make oral arguments.
• If the Court is unanimous in the ruling, one justice
will be assigned to write the opinion of the Court. If
the justices are divided on the reasoning of the
outcome, there will be a majority opinion and
dissenting opinions. CJ will assign who writes op.
Opinions
• Majority - rule of 5 or more
• Concurring - agree with Maj. BUT for
other legal reasons
• Dissenting - disagree with the majority
The Selection of Federal Judges
– Judicial Appointments
•Federal District Court Judgeship
Nominations
•Federal Courts of Appeals Appointments
•Supreme Court Appointments
– Partisanship and Judicial Appointments
– The Senate’s Role (Senatorial Courtesy)
Policymaking and the Courts
– Judicial Review: the power of the courts to
determine whether a law or action by the
other branches of government is
constitutional - NOT in the Constitution
– Marbury v Madison –established Judicial
Review
– SCOTUS will answer federal questions not
political
– What about redistricting? Political?
– Baker v Carr - = Protection Clause 14th Amd –
thus it is a Federal Question
Strict vs Broad
– Judicial Activism and Judicial Restraint
– Strict versus Broad Construction
• Strict construction, a judicial philosophy that
looks to the “letter of the law” when
interpreting the Constitution or a particular
statute.
• Broad construction, a judicial philosophy that
looks to the context and purpose of a law when
making an interpretation
Ideology and the Rehnquist Court
– The Rehnquist Court had attempted, to a limited
degree, to restore states’ rights. Notably, the Court
has limited the rights of citizens to sue their own
states in federal courts.
– The Court has been relatively cautious on civil rights
issues, ruling that affirmative action is acceptable but
within strict limits. One striking ruling in support of
the civil rights of gay men and lesbians, however,
was the abolition of anti-sodomy laws in 2003
through Lawrence v. Texas.
Courts
• Judicial Activist - judge/court that
wants to make policy or law as well as
interpret
• Judicial Restraint - judge/court that
wants to only interpret law
• Dual Courts - Federal & State Courts
What Checks Our Courts?
–Executive Checks
• Enforce judicial decisions through the use of the
bureaucracy
• May refuse to implement a decision. More
frequently, presidents use their power of
appointment to check the judiciary.
–Legislative Checks
• Constitutional amendments
• Revision of laws
–Public Opinion
Judicial Traditions and Doctrines
–To a certain extent, the courts also check
themselves.
–Hypothetical and Political Questions.
• The tradition of refusing to adjudicate
hypothetical questions serves as one check.
• The doctrine that many issues (political questions)
ought to be resolved by the elected branches of
government is also a restraint.
–The Impact of the Lower Courts.
• If lower courts dislike a Supreme Court ruling,
they cannot overturn it but can seek to apply it in
as limited a fashion as possible.
Landmark Court Cases
• McCulloch v Maryland - states
cannont interfere with or tax legitimate
activities of the federal government
• Griswold v Connecticut - banning
contraception was Unconstitutional
(privacy)
Supreme Court
• Roe v Wade - abortions were to be legal
Landmark Court Cases
• Mergens Case - Religious groups can
be allowed in School
• Texas v Johnson - flag burning is
protected
• Miranda v Arizona - informed of rights
• Lee v Weisman - NO prayer at Grad.
Court Cases
• Planned Parenthood v Casey - parental
permission for abortion
• Brown v Board - Separate is NOT =
• Gesber v Lago Vista - school district
must know about the misconduct in
order for damages to be awarded
Court Cases
• Doe v Renfrow - Sniffing Dogs does not
constitute a search
• Karr v Schmidt - Long Hair is not
protected under the 1st Amd - Schools
can force haircuts
• Plessy v Ferguson - Separate IS =
Court Cases
• Tinker v Des Moines - wearing black
arm bands is Constitutional
• Goss v Lopez - 14th Amd/Due Process
applies to Education
• Engle v Vitale - School Issued Prayer is
UNconstitutional
Court Cases
• Bethel School v Fraser - freedom of
speech can be limited
• Hazelwood v Kuhlmeier - Schools can
censor school newspapers
• Vernonia School v Acton - students in
Extracurricular can have drug tests
Court Cases
• New Jersey v T.L.O. - Reasonable
Suspicion for School Searches
• West Virginia v Barnette - students do
not have to salute the flag
• Davis v Monroe County Board - schools
do not have to pay damages for teasing
Court Cases
• Wisconsin v Yoder - Amish students
can opt out of of school prior to 16